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Scalia: Chief Judicial Activist?

In a speech to lawyers gathered June 21 in Asheville, U.S. Supreme Court Justice Antonin Scalia decried judicial activism.

That was to the North Carolina Bar Association on Friday. But today, Scalia and his colleagues struck down a law enacted by a 98-0 vote in the usually fractious Senate. Commonweal's editors predicted this "clear judicial activism" in their March 5 editorial. Now perhaps Commonweal's own legal experts can weigh in: Is Shelby County v. Holder the most "activist" Supreme Court decision of all time?

Let's see what the Senate's leader was saying about the Voting Rights Act all the way back in 2006:

Senate Majority Leader Bill Frist (R-Tenn.) called the vote a major success. "The Voting Rights Act has worked," he said. "We need to build upon that progress by extending expiring provisions."

Indeed, the Voting Rights Act has, on the whole, worked -- a fact demonstrated clearly by the ruling itself. Has it worked so well that it is no longer needed? This is unthinkable, as demonstrated by the long litany of abuses in Ginsburg's dissent, many of them from the 2000's. This is not even to mention more recent attempts to suppress voter turnout, as discussed in this 2012 Commonweal editorial.

Recall that during oral arguments, Scalia referred to the Voting Rights Act as the "perpetuation of racial entitlement." That inaccurate and offensive remark was likely to be forgotten over time, but with today's ruling, it will probably become the most memorable and quoted line of Scalia's career.

In the previous words of Commonweal's editors:

Scalia’s offhand reference to the “perpetuation of racial entitlement” was another startling reminder of why the VRA is necessary. The federal government goes to great lengths to ensure equal representation not as a generous gift to racial minorities, but because the right of all to vote and be counted is fundamental to our political system.

Perhaps most remarkable about this decision, given Scalia's originalism and his understanding that the courts should defer to the judgments of the people expressed through the legislative branch, is that we have in the VRA a statute re-authorized several times, most recently by a near-unanimous legislative branch only seven years ago. How an originalist who believes in the political branches of government and the primary authority of the people can say that the assumptions of section 5 no longer can apply is...puzzling.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determines which states must receive preclearance from the Justice Department or a federal court in Washington before they make minor changes to voting procedures, like relocating a polling place, or major ones, like redrawing electoral districts.

John Neiman, an attorney who submitted an amicus curiae brief on behalf of Shelby County is quoted as saying:

All nine justices agreed in a 2009 case that the coverage formula had serious constitutional issues. The coverage formula is exceedingly difficult to justify as a matter of logic. I had hoped that more justices would agree to strike down the coverage formula, and to leave it to Congress to fix the problem if it so desired.

Does anyone know why Congress did not use a more up-to-date formula when they renewed the Act in 2006?

And this post seriously mischaracterizies this issue. The real issue is that Congress failed to uphold its responsibility. The act itself is not unconstitutional; its that Congress failed to update it for changing conditions. Voting patterns have changed dramatically since 1975 which means the law should have changed. And in 2009 the Democratic party controlled both the House and the Senate so they certainly could have passed any update they wanted once the Supreme Court put them on notice. Lazy and irresponsible.

Bruce, what do you mean "once the Supreme Court put them on notice"? The Voting Rights Act was renewed in 2006 for 25 years by Congress and signed into law by President Bush. The Senate vote was unanimous; well over 90% of the House voted in favor as well. At the time, Republicans controlled both houses of Congress.

Here is the complete text of the 15th amendment to the US constitution:

"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation."

The Court's majority yesterday did not (so far as I know, I'd be happy to be prove wrong) cite what provision of the Constitution the Voting Rights Act violated, contenting itself with stating it violated the "letter and spirit of the Constitution".

So we have a case in which the Constitution gives explicit and unrestricted power to Congress to pass "appropriate legislation" to enforce a constitutional right, the Congress by near-unanimous vote exercises its power, and the Court's majority overturns the law. Can we agree that so-called "originalists" have lost all credibility when they decry "judicial activism"?

The constitutional objection is on the grounds of equal sovereignty, i.e. that the federal government should not impose an unequal burden on state governments because all states are equally sovereign. Still, I cannot elude the feeling that the changes in voting patterns provide only a convenient opportunity to strike down a law the majority might have liked to have struck down (and those who agree with them would've struck down) in 1966. The real objection is to any federal limitation of state sovereignty at all, and the presence of remarkable mountains of evidence of discrimination in the pending Texas case and other places seems not to move the majority much. This isn't a decision about voting or race so much as it is one driven by the oldest argument in American politics--state power vs. national power. (And like many of the times we've had that argument, the implications are charged with potential harm for minorities.) One reads the decision, its data-heavy demonstration of how voting patterns have changed, and one seems meant to feel the warm satisfaction of living in a post-racial society. The justices know that's not true as well as we do, but that's not the point. The goal was to limit the power of the federal government, and they have succeeded.

As for why the formula was not updated in 2006? I don't know that "lazy" really gets it. More like inertia. To tinker with the formula and crawl into the tall weeds of these issues offers members of Congress no win--especially because the appearace (to my eye) is not that the geographical loci of descrimination really have moved or changed so much as that the discrimination in those places has grown subtler, harder to quantify. Most probably the same disincentives that prevented congressional action in 2006 will continue to promote the same inertia now that the Court has forced the question. And that means that the majority has effectively struck down the VRA without actually striking it down. We'll all blame Congress, call them lazy, but there will be no more section 5 enforcements.

Last point. Does anybody remember Roberts's confirmation hearing where he talked about how important it would be to work for larger majorities on major cases, and how undesirable it is to make far-reaching changes to the law by 5-4 margins? Or do I remember that incorrectly?

I cannot help but believe that the inevitable effect of any such law which forces any one of the States to entreat federal authorities in far-away places for approval of local laws before they can become effective is to create the impression that the State or States treated in this way are little more than conquered provinces. And if one law concerning voting can make the States plead for this approval by a distant federal court or the United States Attorney General, other laws on different subjects can force the States to seek the advance approval not only of the Attorney General, but of the President himself, or any other chosen members of his staff. It is inconceivable to me that such a radical degradation of state power was intended in any of the provisions of our Constitution or its Amendments.

Notice first that Black's fears of further laws encroaching on state sovereignty or powers over states being granted to faceless bureaucrats in the Executive Office of the President have not come to pass...despite fears that persist today that such 'tyrannical' excesses lurk around every corner of a federal building. But finally, the real logic of Shelby County is the same as Katzenbach: we cannot treat states unequally--no matter how much historical evidence or current practice demands that we recognize state and local behaviors that demand some federal remedy.

Steve Benen asks on what grounds the court found the struck section of the VRA unconstitutional. Oddly, Roberts's opinion doesn't say. Not so oddly, Roberts also neglected to mention the 15th amendment, which (as noted by Luke Hill, and in the editorial Michael Peppard links to) is the one that explicitly spells out Congress's right and responsibility to pass laws like the VRA. I don't see any way around the conclusion that Benen (and we) reached: "The justices decided to substitute their judgment for the people's and their elected lawmakers, because they felt like it."

It seems to me conservatives should be alarmed by the court's decision to vacate an action of the legislative branch, even if they happen to dislike the specific law that the Court delegitimized. Unelected elites overturning the work of the elected representatives of the people, in direct contradiction of the Constitution, strikes me as the sort of thing conservatives tend to protest. And if the Roberts court were inclined to look to precedent as part of its usual process, this decision would set a very bad one.

I'd respectfully disagree that "this isn't a decision about voting or race so much as it is...(about) state power vs. national power". The old argument that the Civil War was about "states' rights" is pretty well disproven by now (not least by the writings of the secessionists). It was about slavery and white power. It's hard not to see this decision as the latest episode in that long struggle.

The Voting Rights Act was renewed in 2006 for 25 years by Congress and signed into law by President Bush. The Senate vote was unanimous; well over 90% of the House voted in favor as well. At the time, Republicans controlled both houses of Congress.

This is one of Michael Peppard's points as well. My question is: is a provision's Constitutionality a function of the majority by which it is passed? Had it passed the Senate 51-49, and the House 218-217, would that be an indication to the Court that the provision was of dubious Consitutionality?

The PATRIOT Act also passed by significant majorities of both houses, including 98-1 in the Senate. The Defense of Marriage Act passed by overwhelming majorities in both houses, including 85-14 in the Senate. By the logic being put forth here, should the Court even agree to consider challenges to those laws?

I'm told that New York City was one of the areas that required Federal permission to change its voting laws under the Voting Rights Act. There are many New Yorkers who post and comment here. In your opinion, now that the provision is overturned, is New York particularly vulnerable to systematic racial discrimination against African Americans? Now that Mayor Bloomberg's hands no longer are tied, should we look for him to enact sweeping reforms that will disenfranchise black voters in New York?

Roberts also neglected to mention the 15th amendment, which (as noted by Luke Hill, and in the editorial Michael Peppard links to) is the one that explicitly spells out Congress's right and responsibility to pass laws like the VRA.

The 15th amendment is still in effect, and Congress is still (sort of) operating. Except for this single provision that was struck down, the Voting Rights Act remains in force. President Obama has already vowed to pass replacement legislation, presumably that would take into account the Court's ruling and avoid what is Constitutionally objectionable. Also, I don't know of any reason that individual states that were subject to the now-voided provision can't enact their own laws and regulations to ensure voting fairness. And with the publicity that this decision has engendered (except in Chicago, where nothing but the Blackhawks and the Stanley Cup is considered worthy of newscasts and front pages), the wind should be at the backs of those who want to replace the provision in question.

Sorry, meant to add to my previous comment: the political optics that led to the virtually unanimous extension of the VRA in 2006 haven't changed. While there is no percentage in supposing that Congress has hit bottom in its ability to be dysfunctional, I would guess that even House Republicans don't want to go on record as obstructing anything that smells like it would disenfranchise non-white voters. There is a presidential election in 2016, and Republicans have failed for two presidential elections to muster enough white voters to get anywhere near the summit, much less over the hump.

Shame on the Catholics on the bench and the Catholics who justify it. Striking down the Voting Rights Act and Affirmative action in the same week! These are empire Catholics who exult in building 200 million dollar cathedral while cooly neglecting the disenfranchised. It is judicial activism. I am not sure how it will stimulate the Democrats. But it will surely galvanize minorities. I think it will help the Dems in the midterm elections. At any rate it removes all semblances of good will of the Catholics on the court. Shame on them. Wonder what Ted Hesburgh thinks about these Scotus Catholics.

To pick up on Steven M.'s observation, here's how Charles Pierce prefaces his views on the day-to-day statements of Antonin Scalia: "I'd be remiss if, in light of yesterday's day of jubilee regarding the Voting Rights Act, I didn't point out what an incredible passel of Janus-faced thooleramawns the Supreme Court's conservative faction is."

My two cents on the matter. Scalia is a lawyer not a justice. A legal fundamentalist. If there is, as he seems to believe, something divine in the law it was in the motives that led to its creation of some of its particulars.. As to the particulars of its implementations, that's another matter altogether.

Would it really have been so damaging, so irresponsible, to have passed on this one by merely suggesting the Congress reconsider its methods of identifying areas of our nation requiring the attention demanded by the VRA and, in the mean time, leave it be? Nope.

My thanks to Dominic for passing along the reference to thoolamawn. It joins bacciagalupe among my favorite ethnically-specific putdowns, the very spice of life in the remnant of Catholic immigrant culture.

This was a really odd argument for a group that claims to believe that the courts should defer to the legislature whenever possible. The court in essense said we don't much care what the Congress did. We are making a judgement that its standard should be changed based on our personal views. Judicial activism at its worst.

This wasn't a case of legal fundamentalism. This was a case of the judiciary substituting its judgement for that of the legislature, which is the very opposite of legal fundamentalism. Justice Scalia and his little me toos, Justices Thomas and the Alito, are effectively conservative political activist who with no coherent judicial philosophy. They have demonstrated this in any number of cases where deference to legislature, a fundamental position of conservative legal pricipal, or any number of other pricipals have been tossed aside in order to support concservative political causes.

The ULTIMATE issue is whether or not people's voting rights in those areas are being respected.

The IMMEDIATE issue is whether or not the data on which government action is to be based is in fact current data, that is, data which reflects the facts today.

The Court has not thrown out the VRA, it has only demanded current data in order to implement the that crucial section of the law.

Until we actually have facts and figures to tell us (both Congress and the Court) whether or not the facts have or have not changed, we can't really say whether the Court's decision regarding those facts is right or wrong, It thinks times have changed enough to require a change in the law. Maybe it's right, and maybe it's wrong. It's up to Congress to look and see.

This time I'm with the Court. Surely at least Manhattan should have been taken off the list, as Jim P. has noted.

A perfect example of this position is Scalia's disent in the DOMA case. Here is his comment:

"We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

Yet not 24 hours earlier the court in the voting rights act did exactly that and Scalia was among those who had no reservations about substituting his judgement on what standards a state should meet to be included under the act for those included in "democratically adopted legislation." He is a conservative political activist masquerading as a justice.

@Jim Pauwels (6/26, 8:20 am) To answer your first question, a law's constitutionality is not a function of the majority by which it is passed. I was merely pointing out to Bruce the strong degree of Republican support when it was renewed in 2006.

It really isn't the role of the court to decide what data one should use in establishing a standard. That puts the court in a role that goes way beyond its proper function. And I'm a supporter of a relatively activist court. Using the Roberts logic, the court should or could get into really detailed decisions for which it is ill equipt. It is as if what it did was to say "We agree that you have the right to set the speed limit, but we think it ought to be 75, not 65 because we've heard that cars and highways ar better built these days."

this was a case where they knew on the law they couldn't justify their decision so they went and threw out the details.

True, it isn't the function of the Court to establish the data -- that's why it told Congress to revise the data in 2009 but Congress didn't do its duty, as usual. Yes, there should be blame -- and Congress should get it.

@Ann Olivier (6/26, 5:19 pm) But what makes the data set a matter of constitutionality when it comes to Congress carrying out its designated power under the 15th amendment? Upon which provision of the Constitution is the majority relying?

@Jim Pauwels (6/26, 8:28 am) - I can't speak for NYC. I can say that the Commonwealth of Massachusetts was successfully sued by civil rights organizations for the redistricting plan adopted after the 2000 census. (In a related matter, the House Speaker ended up in prison.)

UPDATE: Also very much worth noting is this excerpt from Justice Ginsburg's dissent: "The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot­ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.)."

In other words, "A jurisdiction included under Section 4 could take steps to get removed from preclearance requirements under Section 5. And a jurisdiction not included under Section 4 could be placed there if they demonstrated a pattern of systemic racial discrimination."

True, in theory there's no "reason that individual states that were subject to the now-voided provision can't enact their own laws and regulations to ensure voting fairness".

However, in the real world in which we live, leaders of the governing party in several of the "individual states that were subject to the now-voided provision" have made clear that they intend to move forward with laws and regulations that will ensure voting unfairness, discriminating against the poor, the young, and the non-white.

UPDATE: According to this AP story, Republican officials in Texas, North Carolina and Mississippi are moving forward with plans to restrict voting.

Doubling back to the "state sovereignty" argument, ponder this: if Roberts, Scalia, Alito and Thomas care so much about protecting state powers from encroachment by the federal government, then why did they dissent from Kennedy's opinion in today's DOMA case---a classic case of "states' rights"?

His reply is typical of conservative opinion here, and notice the importance of the "Hence." The role of voter supression and discrimination is absent from his consideration of the problem

Justice Jackson can guide us when we're setting our constitutional priorities. He quipped that the Constitution was never intended to be a suicide pact. A decision to uphold the Constitution can't be repugnant to the purposes of the Constitution. It might be ideal, yes, were Manhattan and other jurisdiction removed to reflect the state of things. Congress should do that. But it wasn't Manhattan that filed suit. Indeed, those jurisdictions haven't complained. The complaint came from Alabama where, perhaps, we'll agree that voter supression and discrimination continues...and, will continue unchecked now in light of what the Court has done.

What, in fairness, you call a reasonable and right decision (and which is, in its way, reasonable and right) will empower voter supression and discrimination, the very opposite of what the 15th Amendment intends. So I don't think the question is whether the formula should have been updated. Ideally, it should have. But practically, the Court has empowered voter supression and discrimination in the name of upholding a constitutional standard. That's a perverse mis-ordering of constitutional priorities.

Communities that will have 4-6 hour lines to vote will pay a big price and the SC could care less. MSNBC showed one Florida juristriction that had a polling place for 6000 voters and another for 68,000 ..

The SC will announce like some other un-skilled dolts.. "that's not our job'

I am convinced beyond debate we severly limit our ability to understand the often complete lack of reasonable political maneuvering in our nation when we accept as valid a label a person gives themselves without useful consideration of its validity. So many of those who label themselves conservatives are no such thing. To believe they are requires we believe conservatism does not merely tolerant the destructive aspects of ignorance it does in fact enshrine it. That we tolerate lunacy can be a fine thing. We all need a vacation from reality from time to time. That we demand it of our leaders is another matter.

BTW, if it is indeed true that Scalia's train of thought when expressing his opinions of the DOMA decision allowed him to find appropriate his dragging the phrase "homosexual sodomy" into the public arena....well....my goodness but the boy is a bit over the edge, fancy robe and all.

Nobody is denying that the section needs to be restored -- but Chief Justice Roberts insists that a restoration be done on the basis of current facts as they are determined by the Congress, which is, according to the Constitution, Art. 15, the body resposible for protecting the rights at issue.

It's time we voters take responsibility for the do-nothing Congresses that we've been electing.

Is it the job of the SC to write the laws governing voting processes? Or do you think that it makes no difference which arm of the government gets a job done? That way would also lead to executives (Presidents) deciding what shall be done, not Congress.

@Ann Olivier (6/26, 11:04 pm) According to Justice Ginsburg in her dissent, "Congress may have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot­ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.)."

So Congress created mechanisms for "pre-clearance" jurisdictions to remove themselves from the requirement for pre-clearance, and for other jurisdictions to be subjected to pre-clearance.

How is that not an example of writing law "on the basis of current facts" (regardless of whether there might be other ways of accomplishing the same end)?

And what provision of the Constitution does Section 4 of the Voting Rights Act violate? (I've yet to find a citation.)

Scalia has 9 children and over three times that many grandchildren (last I read, 28). Suppose one of that clan is gay. It's possible. And supposing that member of his clan finds a life partner and wants to marry.

However, in the real world in which we live, leaders of the governing party in several of the "individual states that were subject to the now-voided provision" have made clear that they intend to move forward with laws and regulations that will ensure voting unfairness, discriminating against the poor, the young, and the non-white.

In the link you provided, I didn't see any reference to laws and regulations that will ensure voting unfairness, discriminating against the poor, the young and the non-white. I did see that a handful of states that are in various stages of enacting voter-ID laws, now no longer being burdened with getting clearance from the Obama Administration's Justice Department, are now proceeding with those initiatives.

The state that made news reports that I've heard in the last couple of days in this regard is Texas. Following the link you provided, I learned that Texas residents, in order to vote, will need to present an ID card. A driver's license serves this purpose; for those who don't have one, the ID card is free and is obtainable wherever drivers licenses are obtainable. To obtain one, a Texan needs to demonstrate citizenship which, for anyone born in the US, means producing a birth certificate. Is it your understanding that the poor, the young and the non-white are not issued birth certificates? That hasn't been my observation. I happen to have one kicking around the house already because I've needed it in the past to obtain other things required to get on with my life - in my case, I think it was a marriage license and a passport. I don't remember how I got it, but it wasn't particularly burdensome.

Texans also have to prove state residency. The link you provided doesn't specify how to establish residency in Texas, but I've had to do it here in Illinois for various purposes, such as getting a municipal sticker for the car, and obtaining a driver's license. Utility bills with my family's name and place of residence usually suffice in Illlinois, including for the poor, the young and the non-white, but there are many other ways to do it, too.

I note, too, that according to Slate Magazine, there are something in excess of 1.6 million illegal immigrants in Texas. Given that reality, it doesn't seem outrageous to me that proof of citizenship and residence be confirmed at the polling place. The population of illegal immigrants in Texas approaches 7% of the state's total population, and of course, many, many elections are decided by margins smaller than that.

All of the above is based on a couple of minutes' surfing on the web. Possibly there are concerns with the Texas requirement that didn't surface in my brief research. If that is the case, we're told that, despite this Supreme Court decision, a variety of other legal remedies (to say nothing of legislative remedies) are still available to those who advocate for voter fairness. But we already know this to be true, because we know at least two states, Ohio and Pennsylvania, that were not burdened with the VRA preclearance provision during the 2012 election season, but who nonetheless had problematic voter ID laws struck down by the courts.

What is so inappropriate about the words 'homosexual sodomy'. Sodomy is defined in Websters as 'oral or anal copulation with a member of the same or opposite sex'. Sodomy describes a physical act with humans actually perform; it is truthful. Homosexual is defined in Websters as 'of, relating to, or characterized by a tendency to direct sexual desire toward another of the same sex'. No problem with this word either. So Scalia's use of the words 'homosexual sodomy' accurately descibes a human activity and it describes it truthfully. So what's 'inappropriate [and] a cheap shot?

Maybe its an implied opprobrium against such human activity especially when that involves a 'loving couple'. Surely a God who is Love would not contenance such opprobrium. But God is also Truth. And the truth about the human sexual faculty is that it can only achieve its most astounding intended purpose, conception of a child, when only a male and a female are involved. A truthful and loving God cannot countenace sexual contact between a sex organ and a mouth or anus or any other non-sex-organ body part, else He becomes untruthful and hence not God. He cannot be loving and untruthful. Or perhaps He is just cruel, designing a world where it is impossible for humans to the ascertain right conduct of His truth. But in that case as well, He cannot be the God - Father, Son and Holy Spirit - which the Catholic church teaches. Love is not that God's only quality.

Thanks. I didn't realize that Congress had already in the last version of the law made provision for changing the status of particular counties and states. You're the only one I've read who has made that point. Odd, though, that the minority view didn't make that point -- or did it?

As for last version of Section 4 violating the Constitution, if the majority of the justices assumed that there was no provision to change the status of offending state jurisdictions, then that would be a clear violation not of Amend. 15 (which is concerned with the rights of individuals to vote) but it would be a matter of violating the right of non-national jurisdictions to not-be-burdened with the requirements of Section 4. I have no idea which article or amendment that right to not-be-burdened would violate. But that point is moot if Section 4 still allows action to be taken to correct any unfair implementing of the voting rights.

- The Constitution really could not be clearer on this one. That's why the VRA opinion did not even try to dispute the letter of the law. It made a spirit of the law argument -- the kind that Scalia et al. say that they avoid.

- Of course the majority can be wrong. It often is. But 98-0 in a Senate that rarely agrees on anything -- a vote only 7 years old -- is no simple majority. The point here is about how much power the Supreme Court arrogates to itself, without giving a constitutional argument.

- As I understand it, the NYC aspect of the VRA pre-clearance stuff has in part been about linguistic barriers, which correspond to but do not directly overlap with racial barriers, to voting. As the most linguistically diverse place in the country -- I think Bronx and Queens are actually the most linguistically diverse places on earth -- changes to voting practices here ought to be held to serious scrutiny.

- As for voter ID, there have been lots of compliations by journalists of citizens denied their right to vote, including things like: birthed by rural midwife and no hospital record; misspelled name on hospital record and unable to get birth certificate; no proof of address because all documents were in name of deceased spouse; being turned away with Veterans Affairs ID because it didn't include his home address on it. These stories are all easily available. They are mostly elderly and poor. Many of the reported stories have also been veterans.

- Another method of voter suppression is to eliminate early voting, which is heavily used by folks who cannot get off work on election day. Because we don't have holidays for election days, people with unstable employment often have to choose between showing up to work and voting. And yes, some people really do work two jobs on a Tuesday and can't take a long period to go wait in line at the polls. A election holiday (like every other civilized country) would of course remove this excuse.

- And finally, the fact that voting has improved in these states since 1965 does not negate the need for the law. It proves the success of the law. That's the most twisted part of the logic. To make an analogy that I think is better than Ginsburg's about the umbrella:

Because it is much easier for handicapped citizens to enter public buildings nowadays does NOT mean that the Americans with Disabilities Act has run its course and can be done away with.

@Jim Pauwels (6/27, 10:01 am) Thanks for the response. Quoting from the federal court ruling last summer that blocked Texas' voter ID law: "“The State of Texas enacted a voter ID law that — at least to our knowledge — is the most stringent in the country. That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty. And crucially, the Texas legislature defeated several amendments that could have made this a far closer case.”

This quote is not from the court's ruling, but from the linked news story, "One set of data provided by the state showed Hispanics were 46.5 percent more likely to lack a state-issued form of photo identification, while another showed Hispanics were 120 percent more likely to lack that type of ID."

I find the following statement from your comment illuminating: "Is it your understanding that the poor, the young and the non-white are not issued birth certificates? That hasn't been my observation. I happen to have one kicking around the house already because I've needed it in the past to obtain other things required to get on with my life - in my case, I think it was a marriage license and a passport."

First, my understanding---like yours---is that everyone gets issued a birth certificate. You have a copy of yours because you needed one to get "a marriage license and a passport". Young adults---particularly low-income young adults---very often have never needed to get a marriage license or a passport, because they've not been married and they've not travelled to other countries.

In-person voter fraud is virtually nonexistent in Texas, and in every other state in the union. The wave of voting restrictions introduced in recent years have two things in common: 1) they're all aimed at creating an electorate that is older, whiter and wealthier than the citizenry at large; and 2) they're all proposed by Republicans---the party that has made a conscious decision over the past two generations to leave behind its pro-civil rights tradition in order to appeal to the racial and ethnic resentments of a sizable bloc of white voters.

I'll ask you, as I've asked others in this thread: what provision of the Constitution---according to Justice Roberts---did section 4 of the Voting Rights Act violate? Because, from everything I've read so far, his decision never makes that clear.

@Ann Olivier (6/27, 12:33 pm) Thanks for your reply. Actually, the minority did make that point. Above I quoted directly from Justice Ginsburg's dissenting opinion where she makes precisely that point. Apparently the majority either misread the statute or ignored that section of it.

I'm not sure what you mean by the "right to not-be-burdened". It seems fairly clear from the history of the 15th amendment, that its framers quite consciously wrote it so as to remove voting rights from the power of the "several states" and lodge it firmly with the federal government, specifically by giving Congress the power to enforce those rights.

By the right not-to-be-burdened I was just referring to the right of a jurisdiction not to be burdened with irrelevant laws. For instance, if a county in up-state new York were covered by Section 4 even though it had no voter registration problems, that would violate its right not-to-be-burdened by the law.

Ann, thanks for clarifying. As I think you indicated, and as Ginsbrug wrote in her opinion, Congress seems to have written the Voting Rights Act to accommodate that situation. If a jurisdiction had no recent history of discriminatory voting laws or practices, then it's not subject to pre-clearance. If a jurisdiction starts adopting discriminatory laws or practices, then it is.

I note, too, that according to Slate Magazine, there are something in excess of 1.6 million illegal immigrants in Texas. Given that reality, it doesn't seem outrageous to me that proof of citizenship and residence be confirmed at the polling place. The population of illegal immigrants in Texas approaches 7% of the state's total population, and of course, many, many elections are decided by margins smaller than that.

Jim Pauwels (6/27, 10:01 am)

That's a strong argument if one assumes that the 1.6 million illegal immigrants, who have good reason not to draw attention to themselves, are going to vote fraudulently at far higher rates than Texas citizens vote legitimately.

Closer to reality, I suspect, is this state-by-state map of known voter fraud cases since 2000.

Texans have cast tens of millions of votes since 2000, and 37 of them are known to be fraudulent. The probability that fraud falsified any election result is exceedingly small, although still larger than the chance that voter fraud prevention is the true motivation for voter ID laws.

I don't remember how I got [a birth certificate], but it wasn't particularly burdensome.

I think you might agree that it is hazardous to generalize from one's own case to that of millions of other people whose circumstances are known to be different. We who have a computer and the leisure and inclination to post comments on this blog may be better able to overleap small administrative hurdles than those whose waking hours must be devoted almost entirely to feeding their families and keeping them sheltered, that is, poor people.